Balan S/o Late Arumughan v. Silvester; C.G. Sreenivasan; The National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 9[TH] DAY OF MARCH 2022 / 18TH PHALGUNA, 1943** **MACA NO. 1212 OF 2013** **AGAINST THE AWARD IN OPMV 485/2005 OF MOTOR ACCIDENTS CLAIMS** **TRIBUNAL, TRISSUR** ## **APPELLANT/PETITIONER:** **BALAN S/O.LATE ARUMUGHAN, MULLAKKAL HOUSE, AMBALAPURAM, PERINGANDOOR P.O, M.G KAVU, THRISSUR DISTRICT. BY ADV SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS:** |**1**|**SILVESTER**| |---|---| ||**S/O.VARGHESE, CHIRYATH HOUSE, S/N NAGAR P.O, NADATHARA,**| ||**THRISSUR DISTRICT. 680 751.**| |**2**|**C.G.SREENIVASAN**| ||**S/O.GOVINDAN, CHAKKAMADATHIL HOUSE, P.O KUTTOOR,**| ||**THRISSUR DISTRICT. 680 013.**| |**3**|**THE NATIONAL INSURANCE CO.LTD**| ||**AMBIKA ARCADE, M.G ROAD, THRISSUR 680 001.**| ||**BY ADVS.**| ||**SRI.V.BINOY RAM**| ||**SRI.P.G.GANAPPAN**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1212 of 2013 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.485/2005 on the file of Motor Accidents Claims Tribunal, Thrissur (In short Tribunal). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained by the appellant/claimant in a motor accident occurred on 30.09.2004, while he was travelling as a passenger in an Auto-Rickshaw bearing Registration No.KL-8/3705 through Athani-Ambalapuram public road by hit with a Maruti Esteem car bearing Registration No. KL-8/W-9881 driven by the 2[nd] respondent. It is alleged that the accident happened due to the rash and negligent driving of the 2[nd] respondent, the driver of the Maruti Esteem car. Total compensation of Rs.2,70,500/- has been claimed. 2. Before the Tribunal, respondents Nos.1, 2 and 4 remained ex parte and the 3[rd] respondent insurer filed written statement admitting the insurance coverage with respect to the M.A.C.A No. 1212 of 2013 **3** offending vehicle. Negligence on the part of the 2[nd] respondent is denied and contributory negligence has also been attributed against the driver of the Auto-Rickshaw. 3. Exts. A1 to A11 and Ext.X1 marked from the side of the appellant/claimant. On evaluation of the pleadings and documents produced, Tribunal awarded a total compensation of Rs.1,73,500/under various heads together with interest at the rate of 8% per annum. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant approaches this Court in appeal for the various grounds stated in the memorandum of appeal. Notice as against respondents 1 and 2 were duly served but there were no appearance on behalf of them. Adv.P.G.Ganappan, the Standing Counsel appeared on behalf of the 3[rd] respondent. 5. Heard the learned counsel for the appellant and the learned Standing Counsel for the 3[rd] respondent. Lower court records were called for and perused. 6. According to the learned counsel for the M.A.C.A No. 1212 of 2013 **4** appellant/claimant, claimant was a skilled concrete worker and claimed Rs.6,000/- as monthly income, but the Tribunal fixed his income as Rs.3,000/- per month which is very low. It is also contended that permanent whole body disability has been assessed at 34% by the Doctor of Medical College Hospital where he undergone treatment and Medical Board also assessed disability at 25% but the Tribunal arbitrarily taken disability at 22% which according to him is illegal. It is further contended that compensation awarded under other heads are very low. Hence he seeks for enhancement of compensation on all heads. 7. The learned Standing Counsel for the 2[nd] respondent on the other hand contended that just and reasonable compensation has already been awarded by the Tribunal and hence no interference is called for in this appeal. 8. No evidence whatsoever has been adduced to prove the actual income of the claimant. In **Ramachandrappa v.** **Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident M.A.C.A No. 1212 of 2013 **5** in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 9. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa** ' **s case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally M.A.C.A No. 1212 of 2013 **6** as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganized sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 10. In the present case, the claimant was a concrete worker and the accident occurred in the year 2004 and he was 58 years old. In view of the facts and circumstances, and the dictum laid down in the above decisions, I am of the view that income of the claimant can be taken as **Rs.4,500/-** per month. 11. In _**Raj kumar v. Ajay Kumar and Another**_ (2011 (1) SCC 343 = 2010 KHC 5021) the apex court has elaborately discussed the general principle relating to compensation in injury cases. In personal injury cases, heads under which the compensation is awarded has been classified into two as M.A.C.A No. 1212 of 2013 **7** pecuniary damages (special damages) and non pecuniary damages (general damages). In paragraph No.5, the heads coming under pecuniary damages and non pecuniary damages have been discussed in detail. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating treatment, hospitalization, medicine, transportation nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as damages for pain, suffering and trauma as a consequence of the injuries. 12. In case of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:- Loss of future earnings on account of permanent disability, Future medical expenses, Loss of amenities (and/or loss of prospects of marriage) and Loss of expectation of life (shortening of normal longevity). 13. The assessment of non pecuniary damages under the damages for pain, suffering and trauma, loss of amenities and loss M.A.C.A No. 1212 of 2013 **8** of expectation of life involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. 14. The injuries sustained by the appellant/claimant is as follows: 1. Fracture D12 and L1 vertebra. 2. Subluxation of cervical vertebra C5 and C6. ## 3. Multiple bodily injuries. 15. Ext.A6 the discharge card would prove that he had undergone inpatient treatment for 23 days. Towards medical expenses, Rs.24,978/- was awarded by the Tribunal. With regard to the disability, the learned counsel for the appellant/claimant would contend that the disability certificate issued by the Doctor attached to Department of Orthopedics, Government Medical College Hospital, Thiruvananthapuram certifying 34% whole body disability ought to have been accepted. The learned counsel for the insurer would contend that duly constituted Medical Board assessed the permanent disability at 25% and that has to be M.A.C.A No. 1212 of 2013 **9** accepted. However, it has come out that he was a concrete worker aged 58 years. The award passed by the Tribunal would go to show that he was present before the Tribunal and showed his collar belt and disclosed about having chronic pain on back side and he cannot sit. Injuries sustained by the appellant/claimant including fracture D12 and L1 vertebra, subluxation of cervical verterbra C5 and C6 and multiple bodily injuries. Being concrete worker, no doubt injuries and disability sustained would affect the future earning power. Even though Medical Board assessed permanent disability as 25%, Doctor attached to Department of Orthopaedics, Government Medical College Hospital, Thiruvananthapuram certified permanent whole body disability at 34%. In view of the nature of the work and injuries sustained by him, the functional disability of the appellant/claimant can reasonable be taken as 30%. 16. Towards loss of earning, the Tribunal awarded compensation for 10 months. Discharge summary produced from the side of the claimant would go to show that he had undergone total 21 days inpatient treatment. Loss of earning for 10 months M.A.C.A No. 1212 of 2013 **10** granted by the Tribunal can be maintained here also. Therefore, the appellant/claimant is entitled to get Rs.4,500 x 10 = 45,000/towards loss of earning. Deducting the amount already awarded, the balance would be **Rs.15,000/-** (45,000-30,000). 17. Towards bystander expenses, Tribunal awarded Rs.4,200/-. It has come out that he had undergone inpatient treatment for 21 days and the accident was occurred in the year 2004. Taking Rs.200/- per day towards bystander expenses, the amount awarded seems to be reasonable. Taking into account, the appellant/claimant was 58 years old and 21 days inpatient treatment undergone by him as well as the nature of injuries sustained by him, Rs.30,000/- seems to be reasonable towards pain and suffering. Deducting the amount already awarded by the Tribunal, the balance would be **Rs.10,000/-** (30,000-20,000). Appellant/claimant was 58 years old at the time of accident. Suitable multiplier to be adopted as per **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** is '9'. So, towards M.A.C.A No. 1212 of 2013 **11** permanent disability, the appellant/claimant is entitled to get 4500x12x9x30/100=Rs.1,45,800/- **.** Deducting the amount already awarded, the balance would be **Rs.74,520/-** (1,45,800-71,280). Towards loss of amenities, Rs.18,000/- was awarded by the Tribunal. Taking into the facts and circumstances, that can be enhanced to Rs.20,000/-. Deducting the amount already awarded, the balance would be **Rs.2,000/-** (20,000-18,000). 18. Hence, the appellant/claimant is entitled to get enhanced compensation of Rs.1,01,520/- (74,520+15,000+10,000 +2,000) rounded to **Rs.1,01,500/-** (One lakh one thousand and five hundred only). 19. In the result, appellant/claimant is allowed to realize an enhanced compensation of **Rs.1,01,500/-** in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition till realization. Respondent No.3 is directed to pay the enhanced compensation granted in this appeal, together with interest deducting the liability of the appellant towards balance court fee within a period of two months from the date of receipt of certified copy of this judgment. 20. The appeal has been filed with a petition to condone M.A.C.A No. 1212 of 2013 **12** delay of 6 days. While condoning the delay by order dated 21.12.2021 in CMA.No.1/2013 (CMA.No.1482/2013), it was made clear that, in case any enhancement of compensation is granted, the claimant will not be entitled to claim interest for the above said period. Hence, interest for the period of 6 days is excluded. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal with copy to the Standing Counsel for insurer within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. Sd/- **M.R.ANITHA JUDGE** rps/